BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 19 of 2015
Date of Institution: 6.1.2015
Date of Decision: 18.5.2016
Tej Card Board & Paper Industries (Pvt) Limited, Loharka Road, VPO Gumtala Tehsil and District Amritsar through its technical director S.Gurinder Singh
Complainant
Versus
- M/s. Cholamandlam MS General Insurance Company Limited having its head office at Dare House, 2nd Floor, No.2 N.S.C.Bose Road, Chennai (Tamil Nadu-600001) service through its local office at Opp.Jay Cee Motors, 100 ft. Road, Amritsar through its CEO Auto Insurance Division/Branch Office/Principal Officer
- A.N.R.Motors Private Limited (Castle Toyota), 218/219,G.T. Road, Daburji, Near Bye Pass, Amritsar through its CEO/Principal Officer
- Toyota Tsusho Insurance Broker India Private Limited, Boroker Code IRDA License No. DB-403/08/381 c/o M/s. A.N.R. Motors Private Limited, Castle Toyota, Near Daburji Bye Pass, Amritsar 143001 through its CEO, Auto Claim Assistance Development/Principal Officer
Opposite Parties
Complaint under section 11 & 12 of Consumer Protection Act, 1986
Present: For the Complainant : Mrs.Navjot Kaur,Advocate
For the Opposite Party No.1 : Sh.Sumit Sharma,Advocate
For the Opposite Parties No.2 &3 : Sh.Kanwar Pahul Singh,Adv.
Coram
Sh.S.S.Panesar, President
Ms.Kulwant Kaur Bajwa, Member
Sh.Anoop Sharma,Member
Order dictated by:
Sh.S.S. Panesar, President.
1. Tej Card Board and Paper Industries (P) Ltd, Loharka Road, VPO Gumtala, Tehsil and District Amritsar through its Technical Director S.Gurinder Singh has brought the instant complaint under section 11 & 12 of the Consumer Protection Act, 1986 on the allegations that the complainant is a private limited company running under the name and style of Tej Card Board and Paper Industries (P) Ltd and S. Gurinder Singh,Technical Director has been duly authorized to sign and verify the pleadings, to institute the present complaint and to do other acts necessary in connection with the present complaint. Hence, the present complaint is being filed through him. The complainant purchased Toyota Fortuner vehicle bearing registration No. PB-02-BJ-0007 from opposite party No.2 for valuable consideration and got the same insured from opposite party No.1 vide certificate of insurance cum policy schedule proposal No. P1731087 dated 23.1.2014 for the period from 23.1.2014 to 22.1.2015 against requisite premium of Rs. 60161/-. Thus the complainant having hired the services of the opposite parties for valuable consideration. Therefore, the complainant fall within the definition of consumer as defined under the Consumer Protection Act, 1986. At the time of effecting the insurance of the vehicle in dispute, opposite party No.1 assured the complainant that the regular insurance policy containing terms and conditions of the insurance would be dispatched/handed over to the complainant in due course but till date the insurance policy has not been handed over to the complainant. The vehicle in dispute was mostly used by S.Gurinder Singh, Director of the complainant company through whom the present complaint is being filed. Gurinder Singh was also holding a valid driving license No.PB-0220110013747 issued on 1.8.2011 by the competent authority,Amritsar. On 1.6.2014, during the validity of the period of said insurance, while Gurinder Singh ,Director of the complainant company was coming from Ludhiana to Amritsar, the said insured vehicle met with an accident at about 12.15 a.m.midnight with heavy vehicle truck No.PB12-N-0488 which was wrongly parked outside the white line on the curve of the main road without any indication Near Lamba Pind Chowk in the area falling under policy station division No.8, Jalandhar. In respect of the said accident FIR No. 90 dated 1.6.2014 was lodged with police station Division 8 Jalandhar under section 283/427 IPC and under section 177 of Motor Vehicles Act, 1988 In the said accident which resulted due to wrong parking of the truck in dispute, the insured vehicle of the complainant was totally damaged from the front side. Since the vehicle was totally damaged, therefore, it was not in a position to put on road, therefore, the said director of the complainant company parked the vehicle at the aforesaid police station. In the said accident S. Gurinder Singh, Director of the complainant company also sustained multiple injuries for which he was advised complete rest, so he got the vehicle released from P.S. 8 Jalandhar after ten days. The complainant moved a written request to P.S. Division 8 Jalandhar for release of the said vehicle and the same was released to the complainant. The vehicle was brought from Jalandhar to Amritsar through crane company M/s. Baweja Recovery Service on 10.6.2014 and was delivered to opposite party No.2. Opposite party No.2 entered the said accident claim case in their record for which estimate was also prepared by them. Inspite of the fact that within 10 days the accidental vehicle was toed to the premises of opposite party No.2 by hiring the service of Baweja Recovery Company and the matter was brought to the knowledge of opposite party No.2, who brought the same to the knowledge of opposite party No.3. That toeing and parking the accidental vehicle in the premises of opposite party No.2 itself shows that opposite parties No.2 & 3 were informed simultaneously on the same day. The vehicle in dispute is still in the custody of opposite party No.2, who have estimated the cost of repair of the vehicle to the tune of Rs. 6,21,608/-. The complainant lodged the claim with opposite party No.1 on 26.9.2014 for disbursing the claim i.e. cost of repair but to the utter surprise of the complainant, opposite party No.1 vide its letter dated 16.10.2014 has rejected the genuine and legitimate claim of the complainant on flimsy ground that there is delay in intimating the opposite party No.1 regarding the accident as well as damaged caused to opposite party No.1 . Since there was violation of terms and conditions of the insurance policy on the part of the complainant, therefore, the claim was not payable. The vehicle in question was got insured by opposite party No.2 with opposite party No.1. Since opposite party No.2 was having complete knowledge about the accident as well as damaged caused to the insured vehicle, therefore, the obligation was enjoined upon the opposite party No.2 regarding the said accident as well as damage caused to the insured vehicle. If the opposite party No.2 has not lodged the claim with opposite party No.1 in time, the complainant cannot be held liable for delay in lodging the claim. The act of opposite party No.1 for repudiating/rejecting the genuine claim of the complainant on flimsy ground of delay, amounts to deficiency in service, unfair trade practice as well as gross negligence. The complainant has prayed for the following reliefs vide instant complaint as under:-
a) The opposite party may kindly be directed to pay the insurance claim of Rs. 6,21,608/- alongwith interest at 18% per annum from the date of accident till payment ;
b) Compensation of Rs. 1,00,000/- as detailed above may also be awarded to the complainant.
c) The costs of the complaint may also be awarded to the complainant alongwith counsel fee
Hence, this complaint.
2. Upon notice opposite parties appeared and contested the claim.
3. Opposite party No.1 filed separate written statement taking certain preliminary objections therein inter-alia that the present complaint is legally not maintainable before this Forum. Since the vehicle in question was purchased by the complainant concern for commercial purposes and the same was being used by the complainant concern for commercial purposes and as per law the Consumer Forums are having no jurisdiction to entertain such complaints ; that the complainant has not approached the Forum with clean hands and is guilty of suppression of material facts, therefore, complainant is not entitled for any relief ; that the complainant has failed to intimate the replying opposite party about the alleged accident within the prescribed period, as such the claim of the complainant has been rightly rejected/repudiation by the replying opposite party. On merits, facts narrated in the complaint have been denied. The vehicle in question is registered in the name of M/s. Tej Card Board and Paper Industires (P) Ltd and the same was being used by the said concern for commercial purposes. As such this Forum has got no jurisdiction to try and entertain the present complaint. It is denied that Gurinder Singh, Director of the complainant concern was holding any valid driving license. The story regarding alleged accident is cock and bull story. The complainant has not approached the Forum with clean hands . The alleged accident caused only due to rash and negligent driving of the complainant. The claim of the complainant has been rightly repudiated by the replying opposite party in accordance with law and as per terms and conditions of the Insurance policy, the complainant has failed to intimate the Insurance company within the prescribed time period as per terms and conditions of the Insurance policy, hence, the complainant was not entitled to any relief/claim.
4. In their separate written statement, opposite parties No.2 & 3 also took certain preliminary objections therein inter-alia that to the effect that complainant is stopped by his own act and conduct from filing the present complaint. The complainant has no locus standi to file the present complaint ; that the complainant is not a consumer . The car was purchased by the complainant who is industry and is commercial establishment ; that the complaint is not signed and verified by competent person, as such complaint is liable to be dismissed ; that there is no deficiency in service or unfair trade practice on the part of opposite parties No.2 & 3. The complainant itself alleges that claim was lodged with opposite party No.1,who has rejected the same on the ground mentioned therein , as such question of deficiency in service on the part of replying opposite parties does not arise ; that the complainant for the purpose of subject matter is neither consumer nor replying opposite party is a service provider. So , complaint under this act against the replying opposite parties, is not maintainable. On merits, facts narrated in the complaint have been specifically denied and a prayer for dismissal of the complaint with cost u/s 26 of the Consumer Protection Act has been made.
5. In his bid to prove the case Jaspal Singh, Director of M/s. Tej Card Board Paper Industries Pvt.Ltd tendered his duly sworn affidavit Ex.CW1.A, copy of authority letter Ex.C-1, affidavit of Sh.Gurinder Singh, Technical Director Ex.CW2/A, copy of FIR Ex.C-2, certificate of insurance cum policy schedule Ex.C-3, copy of invoice Ex.C-4, photographs Ex.C-5 to Ex.C-9, copy of driving license Ex.C-10, copy of mail Ex.C-11, copy of estimate Ex.C-12, copy of repudiation letter Ex.C-13, copy of bill dated 10.6.2014 Ex.C-14, copy of discharge summary of Gurpreet Hospital Ex.C-15 and closed the evidence.
6. To rebut the aforesaid evidence, Sh.Sumit Sharma,Adv.counsel for opposite party No.1 tendered affidavit of Sh. Ashutosh Kumar, Legal Manager Ex.OP1/1, copy of repudiation letter dated 16.10.2014 Ex.OP1/2, copy of insurance policy terms and conditions Ex.OP1/3 and closed the evidence on behalf of opposite party No.1.
7. On the other hand Sh.Kanwar Pahul Singh,Adv.counsel for opposite parties No.2 & 3 tendered affidavit of Sh.Rakesh Kapoor, Finance Manager Ex.OP2,3/1 and closed the evidence on behalf of opposite parties No.2 & 3.
8. We have heard the ld.counsel for all the parties and have carefully gone through the record on the file. Besides written synopsis of arguments furnished by all the parties separately.
9. Ld. counsel for the complainant has vehemently contended that in order to prove their case complainant has examined Jaspal Singh, Director of the complainant company Ex.CW1/A, who proved his authority letter Ex.C-1. Complainant Gurinder Singh also made into witness box and tendered his affidavit as Ex.CW2/A. This witness proved documents i.e. copy of FIR Ex.C-2, copy of Insurance policy cum cover note Ex.C-3, copy of invoice Ex.C-4, photographs of the damaged vehicle Ex.C-5 to Ex.C-9, driving license Ex.C-10, mail sent to P.S. 8 Division, Jalandhar Ex.C-11, estimate Ex.C-12, letter of repudiation Ex.C-13, bill of Baweja Crane Service Ex.C-14, discharge card of Gurpreet Hospital Ex.C-15. It is further contended that vehicle in question is a passenger car was purchased by the Pvt. Ltd company for personal use of its Directors. At no point of time, it was used for any commercial activity like transport of goods or ferrying of passengers etc. Further the insurer while doing the insurance for the above passenger car should not have done the debt cap i.e. bumper to bumper loss in case of any accidental loss, if any, and rather should have done only third party cover. Neither at any point of time the insurer sent any detail of the policy which mentions such clauses, if any, regarding commercial usages classification. As such the complainant falls within the category of consumer as defined under section 2(1)(d) of the Consumer Protection Act. Reliance has been placed upon M/s. Harsolia Motors Vs. M/s. National Insurance Co.Ltd in First Appeal No. 159 of 2004 order dated 3.12.2004.
10. It has been further submitted on behalf of the complainant that the complainant got the FIR registered on the same day of the occurrence i.e. 1.6.2014 at P.S. Division 8 Jalandhar under whose jurisdiction the accident took place. However, it took 10 days in bringing the vehicle from Jalandhar to Amritsar as the vehicle was not pliable. Lateron representative of the company retrieved the vehicle and brought it to the premises of Castle Toyota, Amritsar with the help of Recovery crane. The record of the Castle Toyota, when the vehicle was lifted from the premises after the refusal of insurance company to repudiate the claim, clearly shows that vehicle was received on 12.6.2014. A perusal of document Ex.C-3 shows that the Insurance company substantiate the claim of the complainant that “for renewal/claim assistance , please contact Insurance Co. and Broker through :Castle Toyota, M/s. AN R Motors Pvt.Ltd,Castle Toyota,Near Daburji Bye Pass Amritsar, Punjab, Pin Code 143001. Hence the insurance company through its broker and through Castle Toyota M/s. ANR Motors was duly informed on 12.6.2014 when the vehicle was released by them in their premises on 12.6.2014. In all the accidents cases and vehicle reaches the premises of authorized service centre, it is the responsibility of the service provider to take up the matter with the relevant Insurance company from which they have got the vehicle insured. But the Insurance claim of the complainant has been repudiated without any reasonable cause vide repudiation letter Ex.C-13. Estimate of repair accounts for Ex.C-12 and the complainant was entitled for payment of Rs. 6,21,608.60 paise alongwith compensation to the tune of Rs. 5 lacs and litigation expenses for an amount of Rs. 25000/-.
11. But, however, in the case in hand the complainant has not been able to prove that the complainant company was a consumer as per definition given in section 2(1)(d) . A bare perusal of section 2 would reveal that a private limited company does not fall within the definition of a consumer. As the private limited company is not a person under the Consumer Protection Act and a company cannot maintain a complaint under the Consumer Protection Act. It is now no longer res-integra that private limited company does not fall within the purview of the definition of consumer. The instant case , as such, is not entertainable under the Consumer Protection Act. Reliance in this connection can be placed upon recent dictum laid down by the Hon’ble West Bengal State Commission in case reported in 2014(1) CLT 438 while relying upon two judgements of Hon’ble National Commission in cases reported in 2013(3) CPR 430 (NC) and 2012(2) CPR 68(NC). The Hon’ble National Commission went on to hold that private limited company cannot file complaint under the Consumer Protection Act.
12. Even on merits, the complainant has failed to prove its case. Admittedly the complainant is relying upon estimate given by opposite parties No.2 & 3 Ex.C-12 and has sought a direction from this Forum on the basis of that estimate, which is not legally permissible. In the case in hand the complainant did not get its car repaired from opposite party No.2, who is the authorized service centre of Toyota company ; rather the complainant got the vehicle repaired from some un-authorized workshop or mechanic from outside. The complainant has not placed on record actual original bills to prove the factum of loss to his car and the expenses incurred by him on repairs. The complainant did not choose to examine any of the official of concerned workshop or mechanic from whom he got his car repaired. Such evidence could have been the best evidence in favour of the complainant. But the complainant willfully with-held the same from this Forum for the reasons best known to it. In the absence of documentary evidence regarding loss and expenses or amount incurred on repair of the car, the complainant has miserably failed to prove the actual loss as well as the actual expenses incurred by it on repair of the car. On the basis of estimate only, the claim can not be allowed or paid. The estimate may be of 10 lacs . But the vehicle might have been repaired for a much lesser amount than that because the estimate is only general observation of the officials of the workshop and not the final word thereof. Even otherwise also , it was opposite party No.1, who was to decide whether the claim was payable or not. But no intimation regarding the damage to the car was given to it.
13. Besides that there is no deficiency in service on the part of opposite party No.3 as being broker the duty of opposite party No.3 was only to get the new vehicles insured from insurance companies with whom opposite party No.3 was having tie ups. The insurance policies are being done online and opposite parties No.2 and 3 were not the branch office of any of the insurance company. Even opposite parties No.2 & 3 were not having any obligation to intimate the opposite party No.1 regarding the accident as well as the damage caused to the vehicle. Rather it was duty cast upon the complainant/insured to lodge or intimate about the accident as well as the damage caused to the vehicle to concerned insurance company immediately. Opposite parties No.2 & 3 were not under any obligation to lodge the claim with the Insurance company or to intimate the Insurance company about the occurrence of accidental loss or damage. The contract of insurance is between the insured and insurer and there was absolutely no privity of contract between the complainant on one hand and opposite parties No.2 &3 on the other regarding the claim on the basis of the insurance cover in case of accident. In Reliance General Insurance Co. Ltd Petitioner(s) Vs. Jai Prakash & Others Respondent(s) Revision Petition No. 2479 of 2015 decided on 2.6.2015 (NC) it has been laid down that the insured was under a contractual obligation to intimate the theft of the vehicle to the insurer immediately after the said theft came to his knowledge and mere intimating the police or lodging an FIR does not amount to sufficient compliance with the terms and conditions of the Insurance policy. Since admittedly, there was substantial delay in intimating the theft of the vehicle to the Insurance company in both these cases, the insurer was entitled to repudiate the claim on account of aforesaid default on the part of the insured.
14. Since it was an admitted case of the complainant that it was Tej Card Board & Paper Industries (P) Ltd in whose name the car in dispute was purchased & it is also a fact that the concern was running a commercial activity. The car was being used for running the business of the complainant Pvt.Ltd company. As such the complainant cannot maintain a consumer complaint.
15. From the aforesaid discussion, it transpires that the repudiation has been rightly made by the opposite party/insurer. The complainant has neither been able to prove that he was a consumer within the meaning of section 2(1)(d) nor he has been able to prove that intimation regarding the alleged loss to the car in dispute was immediately made to the opposite party No.1 i.e. insurer. As such the repudiation of the claim has been made in accordance with law and no fault can be found therein. Consequently complaint fails and the same is ordered to be dismissed. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
Dated : 18.05.2016
/R/ ( S.S.Panesar )
President
( Kulwant Kaur Bajwa) (Anoop Sharma)
Member Member
